Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts

BRIEF TO THE

House of Commons Standing Committee

42nd Parliament, 1st Session

Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts

Background of the Canadian Criminal Justice Association

The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the House of Commons Standing Committee regarding Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. The CCJA supports Bill C-45 as it looks to reduce the harms of drug use on Canadian society and individuals through regulation instead of relying strictly on enforcement. Though, the CCJA is critical of certain parts of this legislation which represent missed opportunities to further reduce harms done to Canadians, and sections in which ambiguity may result in increased harm for certain populations. Due to the size of this Bill, this brief focuses only on the activities which remain criminal under the Cannabis Act.

The CCJA is one of the largest organizations of professionals and individuals interested in criminal justice issues in Canada and is in the year of its 98th anniversary. Each year the CCJA publishes the Canadian Journal of Criminology and Criminal Justice. This year’s CCJA congress is to be held in Toronto in October 2017, and the theme is: “Advancing Ideas, Evidence and Innovation to shape a Canadian perspective of youth justice”.

History of the Legislation

Bill C-45 was introduced on April 13, 2017, by the Minister of Justice. It received second reading on June 8, 2017, and was referred to Committee in the House of Commons.

Summary of Bill C-45

“This enactment enacts the Cannabis Act to provide legal access to cannabis and to control and regulate its production, distribution and sale. The objectives of the Act are to prevent young persons from accessing cannabis, to protect public health and public safety by establishing strict product safety and product quality requirements and to deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework. The Act is also intended to reduce the burden on the criminal justice system in relation to cannabis.”[1]

Bill C-45 proposes a legislative framework that allows legal manufacturing, distribution, and use of cannabis in Canada. This is done through regulation, rather than prohibition, of activities surrounding cannabis. This Bill also outlines specific activities which remain criminal within the Act, and potential penalties associated with each. Important penalties associated with these criminal acts include, but are not limited to:

Any young person (defined as being under 18) to possess more than equivalent of 5g of dried cannabis is subject to a youth sentence under the Youth Criminal Justice Act (YCJA);

Anyone over the age of 18 found to be distributing more than equivalent of 30g of dried cannabis, or selling any amount of cannabis, is guilty of an indictable offence and liable up to 14 years imprisonment, or guilty of an offence punishable on summary conviction with a fine up to $5000, six months imprisonment, or both;

Anyone over the age of 18 found to be distributing or selling any amount of marijuana to someone under the age of 18 is guilty of an indictable offence and liable to a prison term of up to 14 years, or is guilty of an offence punishable on summary conviction and liable to a fine up to $15,000, up to 18 months in prison, or both;

Anyone found to have involved a young person in any offence included in this Bill is guilty of an indictable offence and liable to imprisonment for a term up to 14 years, or guilty of an offence punishable on summary conviction and liable to a fine up to $15,000, 18 months imprisonment, or both;

Any importation or export of cannabis is punishable as an indictable offence and liable to imprisonment for a term of up to 14 years, or as summary conviction offence and liable to a fine of not more than $5000, or imprisonment of up to six months;

Any household with at least one individual over the age of 18 can cultivate, propagate and harvest up to 4 plants not more than 100 cm of height. Anyone over the age of 18 and in violation of this, or found to be producing cannabis through other methods such as synthesis or altering chemical or physical properties of cannabis, is guilty of an indictable offence and liable to a term of imprisonment of not more than 14 years, or guilty of an offence punishable on summary conviction and liable to a fine up to $5,000, imprisonment of six months, or both;

Any young person found to be producing cannabis is guilty of an indictable offence, or an offence punishable on summary conviction, and liable to a youth sentence under the YCJA;

It is prohibited to posses, produce, sell, distribute, or import illicit cannabis. Anyone found to be in violation of this is guilty of an indictable offence and liable to imprisonment for a term not more than 7 years, or guilty of an offence punishable on summary conviction and liable for a fine of up to $5,000 or six months imprisonment, or both.

CCJA Position on punitive enforcement of drug-related offences

The CCJA has repeatedly stated, and stresses here at the outset, that we do not condone the harmful use of drugs. Our goal is to minimize the harmful consequences of drug use in Canadian society Thus, legalization of cannabis use is most appropriate for Canadian society as it better suits the behaviors, attitudes, and needs of Canadian users while minimizing the harms caused by punitive criminal law. Further, the CCJA suggest that legalization be implemented as soon as possible to ensure that further unnecessary harm is not caused against Canadian society or individuals.

The CCJA has long maintained that criminal law should be used with restraint, and other means of addressing social problems should take precedent when possible. Bill C-45 utilizes criminal law with restraint, and effectively regulates certain activities relating to cannabis, in accordance with the societal normalisation of the drug. Nevertheless, there are certain aspects of the proposed Bill that are lacking, and thus are proposed below as opportunities for future reform.

Rationale

Experts in the field of drug use and addictions have long suggested that the harms associated with cannabis use in Canadian society are far outweighed by the harms perpetuated with a criminal prohibition of cannabis. Canadian society has seen cannabis use increase over time with apparently no regard for the criminal law in place. Furthermore, previous policy attempts have demonstrated that harsh penalties do not work as deterrents against cannabis use and the CCJA has long noted that drug use is independent of the relevant criminal law in place.

The current laws in place surrounding cannabis have been labelled as a paradox, creating laws without a crime, and being incommensurate with the social and personal harm created by the use of cannabis alone[2]. Thus, the legalization of cannabis in Canada and the regulation of relevant activities is, we believe, the most effective way to minimize the harms caused to Canadian society and individuals by cannabis.

Analysis and Conclusion

The CCJA shares the concern expressed surrounding harmful drug use in Canada, and supports legislation which looks to curb such harm through avenues supported by research and scientific knowledge. The CCJA believes that the move to legalize the manufacturing, distribution and personal use of cannabis is a wise one, but notes that certain aspects of the proposed legislation in Bill C-45 could be more apropriate for minimizing the harmful consequences of drug use on Canadian society and individual users.

The proposed rules surrounding distribution and sale of cannabis include changes which will lessen the punishment for some serious offences, while simultaneously increasing penalties for other offenders. Also, certain ambiguities within this Bill may result in unnecessary confusion and unwarranted punishment against individuals. Previous law outlined in the Controlled Drugs and Substances Act (CDSA) see the sale or distribution of marijuana less than 3kg leaving that individual liable for a sentence of up to 5 years less a day, and sale or distribution of more than 3kg liable for up to a life sentence[3]. In the Cannabis Act, sale or distribution of cannabis may leave that individual guilty of an indictable offence and liable to a prison term of up to 14 years.

Distribution specifically is legal up to the equivalent of 30g of dried cannabis, but the sale of any amount of cannabis is illegal in this Bill. Thus, anyone caught distributing between 0.3kg – 3kg, or selling any amount of cannabis, is potentially facing a sentence of up to 14 years in the new Bill, rather than five years less a day as the CDSA currently authorizes[4]. Similarly, those caught distributing more than 3kg are liable to the same penalty of up to 14 years in prison under the proposed Cannabis Act, but, are currently liable for up to life imprisonment. Thus, the penalties for one group are lessened, while simultaneously harshening penalties for those caught in the sale or distribution of an amount less than 3kg. It is important to note here that increasing the potential length of sentence does not work as a deterrent but, may increase the burden on the justice system as a result of the sale or distribution of smaller amounts of cannabis.

The proposed provisions surrounding the sale and distribution of cannabis to anyone under 18 find the seller/distributor guilty of an indictable offence and liable to imprisonment up to 14 years, or guilty of an offence punishable on summary conviction and a fine not more than $15,000 or up to 18 months imprisonment. Though, when it comes to a plausible defence, the only indication listed in the Bill as a possible defence is if the seller/distributor took “… reasonable steps to ascertain the individual’s age”[5]. The Bill does not outline what qualifies as ‘reasonable’ in determining another individual’s age and this ambiguity may lead to unnecessary confusion or an unwarranted imprisonment up to 14 years for someone who believed they are acting within the law.

Additionally, under this Bill, each household with an individual above the age of 18 may legally produce up to 4 plants of up to 100cm in height each. Those who violate those rules may be guilty of an indictable offence and liable for up to 14 years imprisonment, or guilty of an offence punishable on summary conviction and liable for a fine of up to $5,000 or six months in prison, or both. These severe penalties are in direct contrast to the purpose of the legislation- the legalization of cannabis. Further, as mentioned earlier, it has been repeatedly shown in research that intense punishments fail to work as a deterrent and the actions of many individuals regarding cannabis are independent of the criminal law in place.

Bill C-45 provides an effective regulatory and criminal framework surrounding cannabis, but there are several factors not mentioned in this Bill that should be addressed in the future. By legalizing the manufacture, distribution and use of cannabis in small amounts, this Bill will seriously damage the ‘black market’ demand for illicit cannabis. Currently, organized crime groups profit from all cannabis sales and manufacture, but under Bill C-45 cannabis will be provided to individuals through regulated means. To eradicate the ‘black market’ sale of illicit cannabis both quality and price of cannabis sold legally must be regulated. Notwithstanding the arrival of this new potential tax source, the government must ensure that the ‘black market’ is not economically more attractive.

Further, it has been stated that successful prevention of drug use begins with proper education surrounding substance abuse. This Act fails to establish a comprehensive, fact-based education system regarding pharmacological substances such as cannabis. By failing to establish an educational platform surrounding drugs, the Act misses the opportunity to implement an initiative that could be more successful in lowering drug use than other attempts made by previously proposed Bills.

Bill C-45 continues to utilize punishment and enforcement against those who are caught violating drug-related laws. Using this punitive perspective results in the failure to view drugs and their users in more effective ways, such as though a public-health perspective and deal with the issues they cause through research, counselling, treatment and rehabilitation. This Bill does not mandate treatment, nor does it provide any sort of assistance to those who are looking to receive treatment for drug-related issues. Such assistance could easily be afforded if the Bill mandated that even a small percentage of the profits from the sale of legal cannabis be put toward such goals, which would in turn further lower the harms done to Canadian society and individuals. Considering the substantial financial gains which other countries/states have seen after legalizing cannabis in recent years, one can assume that Canada will similarly benefit, and that income should be used appropriately to better Canadian society.

This Bill also increased the fines related to violating rules set forth surrounding cannabis. Unfortunately, as the CCJA has suggested in previous briefs, having larger fines may result in further disproportionate harms against youth and marginalized populations who are already over-represented in Canadian arrest statistics. It is commonly stated in relevant research that a criminal record harms individuals through lowered employment opportunities, the numerous expenses involved in a criminal trial, and the stigma which ensues. Implementing larger fines and potentially longer prison sentences, therefore, will cause disproportionate harm to certain populations of Canadian society.

Finally, it is proposed that consideration be given to lessen the sentences of those still incarcerated for previous cannabis related crimes, either through clemency or parole regulations. It would be illogical that those individuals continue to be harmed by laws which have been found to be unnecessary and hence are being changed. In addition, those with prior convictions who continue to suffer harms through employment impediments or other social disadvantages should have access to a modified pardon framework to cease any further unnecessary harm. Providing such would additionally relieve the community of the burden of people unable to reintegrate society as productive citizens.

Recommendations

The CCJA supports Bill C-45 with the proviso that other reforms proceed in tandem with the Bill’s passage, as described above and including implementation of a comprehensive drug education program, a health-focused response to drug offences including treatment and rehabilitation, and government-supported research on the effects of legalized cannabis. Our support is further subject to the recognition that this Bill should be regarded as just a small, first step in reducing the significant harms caused by the “prohibitionist and penal approach” to illicit drug use in Canada.

In addition, a pricing framework must be developed to ensure that the market of illicit cannabis becomes uncompetitive. Finally, those previously convicted or currently serving prison sentences for cannabis-related offences should be considered for some form of pardon or sentence reduction.